Easements

An easement is a limited right to use another person's land for a stated purpose. Examples of easements include the use of private roads and paths, or the use of a landowner's property to lay railroad tracks or electrical wires.

Types of Easements

An easement may be classified as either an easement appurtenant or an easement in gross.

Easement Appurtenant. An easement appurtenant is an easement that benefits one parcel of land, known as the dominant tenement, to the detriment of another parcel of land, known as the servient tenement. Easements appurtenant are attached to the land and are transferred automatically when the servient or dominant tenement is sold to a new owner.

Example: Landowner A may grant an easement appurtenant to the neighboring parcel of land, owned by Landowner B, allowing B to cross A's property each morning to reach a public beach. Landowner A owns the servient tenement, while Landowner B, who benefits from the easement, owns the dominant tenement. Because the easement belongs to the land and not a specific person, B will still be able to use the easement if Landowner A sells his property to Landowner C. Similarly, if Landowner B sells his property to another landowner, that landowner will be able to use the easement.

Easement in Gross. An easement in gross benefits a person or entity, rather than a parcel of land. If the property is sold to a new owner, the easement is typically transferred with the property. The holder of the easement, however, has a personal right to the easement and is prohibited from transferring the easement to another person or company.

Example: Landowner A may grant an easement in gross to a utility company, allowing the company to bury a gas pipeline across his property. Landowner A may transfer the property to Landowner B without terminating the easement. The utility company may not, however, transfer the easement to another person or company without the landowner's consent.

Creation of Easements

An easement may be express, or it may arise by implication or by prescription.

Express Easements. Express easements are created by a written agreement between landowners granting or reserving an easement. Express easements must be signed by both parties and are typically recorded with the deeds to each property.

Implied Easements. An implied easement may be created only when two parcels of land were at one time treated as a single tract, or owned by a common owner. Accordingly, easements appurtenant may arise by implication while easements in gross may not. An easement is implied by existing use if the easement is necessary for the use and enjoyment of one parcel of land, and the parties involved in dividing the tract into two parcels of land intended that the use continue after the division. An easement is implied by necessity when one parcel of land is sold, depriving the other parcel of access to a public road or utility.

Prescriptive Easements. Prescriptive easements, also known as easements by prescription, arise if an individual has used an easement in a certain way for a certain number of years. In most states, a prescriptive easement will be created if the individual's use of the property meets the following requirements:

The use is open and notorious, i.e. obvious and not secretive.

The individual actually uses the property.

The use is continuous for the statutory period - typically between 5 and 30 years.

The use is adverse to the true owner, i.e. without the owner's permission.

Use of the Easement

The person who uses the easement (the "easement holder") has a duty to maintain the easement. The owner of the easement may repair and improve the easement so long as it does not interfere with the easement holder's use and enjoyment of the easement. The easement must be used for its original purpose, though the scope of use may change to suit reasonable development of the dominant tenement.

Termination of Easements

Easements will continue indefinitely unless terminated by one of the following methods:

Express Agreement. An easement holder and easement owner may decide by written agreement to terminate the easement.

Abandonment. An easement is abandoned when the easement holder takes affirmative action to permanently desert the easement. Non-use of the easement alone does not qualify as abandonment.

Merger. Pursuant to the doctrine of merger, an easement is extinguished if the owner of the dominant estate obtains title to the servient estate.

Ending by Necessity. An easement by necessity is terminated when there is no further need for the easement.

Illinois law dean and professor Vikram David Amar comments on the Supreme Court’s recent decision in Franchise Tax Board v. Hyatt and what it says about stare decisis, the notion that prior Court rulings are entitled to respect in the Court today.